Self-defense argument fails in battery case
An appeals court has upheld a battery conviction of a truck driver who hit another driver with a tire knocker during a dispute over blocking a fuel island.
In a decision released Tuesday, Wisconsin's District III Court of Appeals affirmed the conviction of Richard M. Kubat, 54, Elk River, Minn. Kubat was placed on probation for a year and sentenced to 30 hours community service after a St. Croix County jury found him guilty of battering another driver during an incident that occurred Sept. 14, 2009, at a truck stop in the town of Baldwin.
According to background information in the appeals court decision, Marion Belcher pulled into line at a fuel island behind Kubat, but after fueling his truck Kubat didn't move it ahead.
According to Belcher's testimony, he twice got out of his truck and asked Kubat to move ahead. The second time, Kubat responded with an obscenity and a gesture.
Belcher responded in kind and told Kubat to come down out of his truck and repeat his remarks.
Belcher detached the air hose from Kubat's truck to get him out of the truck. Kubat jumped out of his truck with a tire knocker, a hard wooden tool used for thumping tires to check air pressure. He approached Belcher and pushed him. Belcher pushed back, Kubat swung the tire knocker at Belcher, and the two men wrestled to the ground.
Belcher was hit in the face with the tool but told the jury he wasn't sure when that happened.
Kubat's attorney asked Judge Howard Cameron for a directed verdict of acquittal based on Belcher's testimony that he didn't know when Kubat hit him with the tire knocker. Cameron denied the motion, Kubat testified, and the jury convicted him.
In his appeal, Kubat argued that the state couldn't disprove self-defense because Belcher didn't know who struck first.
The appeals court pointed out that Kubat pushed Belcher first, Belcher was the first to swing, and it was just the timing of the tire-knocker blow that was in question.
Kubat maintained he acted in self-defense. In the appeal, he claimed Judge Cameron improperly instructed the jury on provocation.
Cameron had told jurors, "You should also consider whether (the) defendant provoked the attack. A person who engages in unlawful conduct of a type likely to provoke others to attack and who does provoke an attack is not allowed to use or threaten force in self-defense against the attack."
The appeals court found that Kubat's refusal to move his truck and his cursing at Belcher, pursuing the man with a tire knocker, pushing him and swinging the tool "could reasonably support a finding of provocation."
Therefore, the court concluded, Cameron didn't err by giving the instruction.